McGuire v. Commonwealth

• Citation: 368 S.W.3d 100
• Decision Date: 21 June 2012
• Docket Number: No. 2011–SC–000040–MR.,2011–SC–000040–MR.
• Parties: Brian Allen McGUIRE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

368 S.W.3d 100

Brian Allen McGUIRE, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000040–MR.

Supreme Court of Kentucky.

June 21, 2012.

Julia Karol Pearson, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Courtney J. Hightower, Assistant Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice VENTERS.

Appellant Brian Allen McGuire appeals from a judgment of the Fayette Circuit Court convicting him of first-degree manslaughter (KRS 507.030) and unlawful possession of a weapon on school property (KRS 527.070), and sentencing him to a total of twenty-years imprisonment. He was tried on the charge of murder, but was convicted on the lesser included charge of first-degree manslaughter based upon his successful defense that he committed the killing while acting under extreme emotional distress (EED).

Appellant raises the following claims of error: (1) that he was denied his constitutional right to present a defense because Fayette County Public School authorities and the school system's general counsel interfered with his efforts to interview witnesses employed by the school system; (2) that the trial court erred by permitting the Commonwealth to present evidence concerning Appellant's stressful personal life during its case-in-chief; (3) that the trial court erred by permitting a friend of the victim to present victim impact evidence during the penalty phase of the trial, in violation of KRS 421.500; (4) that the trial court erred in the penalty phase of the trial by disallowing mitigation testimony from Appellant's father; and (5) that the trial court violated RCr 9.74 by permitting the jury to rehear a witness's testimony outside of Appellant's presence. For the reasons explained below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant and Daniel Donato were coworkers on the custodial staff at Leestown Middle School in Fayette County when Appellant shot and killed Donato in the doorway of the faculty lounge. Donato suffered at least twelve gunshot wounds, including superficial grazes and possible shrapnel injuries.

Appellant did not deny shooting Donato. At trial, Appellant defended against the murder charge by claiming that at the critical moment, he was acting under the influence of an extreme emotional disturbance (EED). The underpinning of that defense, which proved to be successful, was his claim that he had been repeatedly harassed, threatened, and bullied by Donato. Testimony of several employees at the school who had observed the interaction between Donato and Appellant tended to support Appellant's claim. The day before the shooting, Appellant had requested assistance from the school system's human resource office. That office undertook an aggressive effort to address his concerns, including plans to draft a letter suspending Donato and, ironically, to have school system's security personnel present at the Leestown School the next day to escort him off the property.

As further discussed in Section III, the Commonwealth's theory of the case was that, rather than a response to bullying, the actual motive for the shooting was that Appellant was jealous and envious of Donato. Appellant struggled in his personal life with financial and other hardships, while Donato seemed to have an easier life, with a higher standard of living as a result of financial assistance from his in-laws.

The day that Donato was to be suspended, Appellant stood in the hallway talking to another custodian. When Donato approached, Appellant drew a gun, pointed it at Donato, and began shooting. Appellant immediately fled the scene, and drove westward. The next day, he surrendered to authorities in Missouri.

Soon afterward, Appellant was indicted for murder and unlawful possession of a weapon on school property. At the conclusionof the trial, the jury accepted his defense theory by acquitting him of murder, and convicting him instead of first-degree manslaughter, for which it recommended a twenty-year sentence. Appellant was also found guilty on the weapons charge. The jury recommended a five-year sentence, to be served concurrently with the manslaughter sentence. Judgment was entered in accordance with the jury's verdict and sentencing recommendation. This appeal followed.

II. DENIAL OF DEFENDANT'S RIGHT TO PRESENT A DEFENSE

Appellant first argues that he was denied his right to present a defense by actions of the school board and its general counsel, Brenda Allen, that interfered with his attorney's efforts to interview witnesses employed by the school system. Following Appellant's arrest, his attorney, Andrew Bowker, and investigator, John Baldridge, went to see Brenda Allen to request her cooperation with their need to meet and interview witnesses who were school employees. It appears that Allen denied their request to meet immediately with school employees, but she did offer to contact each of the employee-witnesses to ascertain whether they would “grant” the defense team an interview and to provide the employees with defense counsel's telephone numbers.¹ Despite these arrangements, and in what would obviously be a material violation of the agreement, the next day Baldridge went to Leestown Middle School during work hours, located one of the employee-witnesses, and interviewed him at his workplace.

In response to Baldridge's visit to the school, acting superintendent Mary H. Wright sent a stern letter to Bowker and Baldridge informing them they were banned from all school system property. The letter stated, among other things:

We are disappointed with the manner in which you have chosen to handle this situation and the breach of trust and utter lack of professional courtesy you displayed. As Ms. Allen discussed with Mr. Bowker by phone yesterday, the two of you and your investigator and anyone working on your behalf or on behalf of your client Brian McGuire are banned from all Fayette County Public School property from this point forward. You are prohibited from entering or remaining on any of our properties without express permission from Ms. Allen. Failure to abide by this prohibition may result in legal action being taken against you.

School attorney Allen sent an equally firm letter to Bowker and Baldridge stating, in part, as follows:

Despite our agreement, Mr. Baldridge appeared at Leestown Middle School the following morning and attempted to interview those staff members. Mr. Baldridge did speak with [a school employee], contrary to our agreement, regarding the shooting. As I indicated to you when I contacted you upon learning of this stunt, I do not appreciate the manner in which you have chosen to handle this matter. Your conduct is completely and totally unprofessional and now alters our approach to dealing with you. To that end, and so there is no mistake, I am counsel for the Board of Education of Fayette County, a corporate client comprised of the sum of its employees and agents. Contact with any of my clients (with the exception of Mr. McGuire's family who are present/former employees of the district) regarding Brian McGuire, Jose Daniel Donato or any matter within the scope of either of their employment with the Board of Education of Fayette County is prohibited.

Moreover, [none of the school employee witnesses] wish to speak with you and have declined your request for an interview. They have asked that I relay to you that all future contact must go through me.... Should you wish to speak to any of my clients, you may contact me, but you should realize now that the aforementioned staff members are willing to speak with you only under a court order or subpoena.

Further, as detailed by the letter to you from Mary Wright, Acting Superintendent, you are prohibited from entering any of our property, as is the case for anyone working on your or Mr. McGuire's behalf.²

Defense counsel's subsequent difficulty in getting interviews with school witnesses—even during their personal time away from work—eventually led to the filing of a “Motion to Prevent Witness Tampering.” The motion sought a hearing on whether the school system “or any other government agent with or without support of the Commonwealth has tampered with witnesses in this criminal case.” Appellant requested that the court “issue appropriate orders to stop any witness tampering that is occurring.” The motion was accompanied by an affidavit from Bowker explaining his difficulties in accessing witnesses. He specifically referenced his attempt to speak with one employee who told him he would not speak to anyone on the defense team “due to not being comfortable speaking to us about the case and that he would feel more comfortable if we spoke with [school system attorney] Brenda Allen.”

At the hearing on the motion, defense counsel expressed concern that the school system had pressured employees not to speak to the defense team. ³ The prosecution responded that a system had been set up to contact witnesses, and that the witnesses had been told that they could speak to the defense or the Commonwealth if they wanted to, but were not required to do so.

The school's human resources director Melodee Parker testified that Allen had informed the school employee witnesses that anyone who attempts to speak with them about the shooting incident should be referred to Allen. She did not, however, indicate that Allen's directive distinguished between interviews attempted during the employees' work time, as opposed to those made during their personal time. At the hearing, the trial court accepted assurances from Parker that she and the school system would assist the defense in meeting with the witnesses. Defense counsel said he would be satisfied with that, and requested no further relief at that time.

However, at a pretrial hearing a few weeks later, defense counsel again complained that the school system was not assisting his effort to meet with witnesses....